Cal Bar Issue Spotting Version Main Deck Flashcards
Multiple Choice Questions Areas
- Civ pro
- Con law
- Contracts
- Crim law and pro
- Evidence
- Real property
- Torts
Additional essay subjects tested
- Business associations
- Community property
- Professional Responsibility
- Remedies
- Trusts
- Wills and succession
Criminal law two basic questions.
- Is there a crime?
- Is there an affirmative defense?
Torts two basic questions.
- Is there a tort?
- Is there an affirmative defense?
Evidence two basic questions.
- Is there an objection?
- Is there a foundation to be laid?
Civil procedure two basic questions.
- Is there a defensive motion?
- Is there an offensive motion?
Con law two basic questions.
- Is this government overreach?
- Is there a basis for this exercise or government authority?
Contracts two basic questions.
- Is there a suit for damages?
- Is there an affirmative defense?
Crim pro two basic questions.
- Has there been a rights violation?
- Is there an exception?
Real property two basic questions.
- Is there a reason this person has a right to use or possess this land?
- Is there some limitation on their ability to use or possess?
Professional responsibility two basic questions.
- Has there been an ethics violation?
- Is there an affirmative defense?
Solicitation elements
- Incite, counsel, advise, induce, urge, or command another to commit a crime
- With the specific intent that they do so.
Someone encourages another to commit a crime think of…
Solicitation
Conspiracy elements
- Agreement to commit a crime
- Intent to agree
- Intent to achieve the objective
- Overt act in furtherance (modern majority addition to common law)
Two or more people talk about committing a crime think of…
Conspiracy…
Attempt elements
- Specific intent to commit a crime
- Overt act beyond mere preparation in furtherance of that intent
Someone wants to commit a crime but doesn’t ultimately accomplish it think of…
Attempt
Criminal assault elements
-attempted criminal battery OR
-Intentional creation other than mere words of a reasonable apprehension of imminent bodily harm in the victim’s mind
Attempted battery think of…
Assault
Criminal battery elements
- Unlawful
- Application of force
- To the person of another
- Resulting in bodily injury or offensive touching
Contact to a person think of…
Battery
Mayhem elements
Dismemberment, disablement of a bodily part, or permanent disfigurement (majority modern addition to common law)
Broken body part think of…
Mayhem
Murder elements
1.unlawful
2. Killing of another human being
3. With malice aforethought
Someone dies think of…
Murder
Voluntary manslaughter
Involuntary manslaughter
Felony murder
Voluntary manslaughter elements
- Murder
- Adequate provocation
Involuntary manslaughter elements
- Killing of another
- Caused by recklessness or an unlawful act
Felony murder elements…
- Killing of another
- In the course of a felony (modern majority rule, at common law just murder, manslaughter, rape, sodomy, mayhem, robbery, larceny, arson, or burglary)
False imprisonment elements
- Unlawful
- Confinement of a person
- Without his valid consent
A person’s physical movement restricted think of…
-False imprisonment
-kidnapping
Kidnapping elements
Common law
1. Forcible
2. Abduction or stealing away
3. Of a person
4. From his country
5. And sending him to another
Modern Majority
1. Confinement of a person
2. Involving movement or concealment
Rape elements
- Unlawful
- Carnal knowledge
- Of a woman
- By a man
- Not her husband (common law, modern majority rule eliminates this requirement)
- Without her effective consent
Any sexual touching think of…
-rape
-statutory rape
-adultery
-fornication
-incest
-seduction
-consent criminal defense
Statutory rape elements
- Carnal knowledge of a person
- Under the age of consent
Adultery elements
- Sexual intercourse
- With another
- Not his spouse
- Open and notorious
- Either party is married
Fornication elements
- Sexual intercourse between or open and notorious cohabitation
- By unmarried persons
Incest elements
- Marriage or sexual act
- Between persons who are too closely related
Romantic relationship think of…
-incest
-bigamy
Seduction elements
- Male person
2, induces - An unmarried female
- Of previously chaste character
- To engage in an act of intercourse
- On promise of marriage
Bigamy elements
- Marrying someone
- While having another living spouse
Larceny elements
- Caption
- Aspiration
- Of tangible personal property
- Of another
- By trespass
- With the intent to permanently deprive
Picking up chattel property think of…
-larceny
Embezzlement elements
- Fraudulent
- Conversion
- Of property
- Of another
- By a person in lawful possession of that property
One person taking or receiving property…
-larceny
-embezzlement
-false pretenses
-robbery
-extortion
-receiving stolen property
-larceny by trick
-trespass to chattels
-conversion
False pretenses elements
- Obtaining title
- To the property of another
- By a knowing false statement of past or existing fact
- With the intent to defraud another
Robbery elements
- A taking
- Of personal property of another
- From the other’s person or presence
- By force or intimidation
- With the intent to permanently deprive him of it
Extortion elements
Common Law
1. The corrupt
2. Collection
3. Of an unlawful fee
4. By an officer under color of his office
Modern Majority
1. Obtaining property
2. From another
3. By threat
Receiving stolen property elements
- Receiving possession and control
- Of stolen personal property
- Known to have been obtained in a manner constituting a criminal offense
- By another person
- With the intent to permanently deprive the owner of his interest in the property
Forgery elements
- Making or altering
- Of a false writing
- With intent to defraud
Writing and criminal hypo think of think of…
Forgery
Malicious mischief elements
- Malicious
- Destruction of or damage to
- Property of another
Contacting property think of…
-Malicious mischief
-burglary
Burglary elements
- Breaking
- And entering
- A dwelling
- Of another
- At nighttime
- With the intent to commit a felony therein
Arson elements
- The malicious
- Burning (common law, modern majority rule is any destruction)
- Of the dwelling (common law, modern majority rule is any structure)
- Of another
Fire think of…
-arson
-houseburning
Houseburning elements
- malicious
- Burning
- Of one’s own dwelling
- Situated either in a city or a town or so near to other houses as to create a danger to them
Perjury elements
- Willful
- Corrupt
- Taking of a false oath
- In regard to a material matter in a judicial proceeding
Criminal law question, Judicial proceeding think of…
-perjury
-subornation of perjury
Subornation of perjury elements
- Procuring or inducing another
- To commit perjury
Bribery elements
- The corrupt payment or receipt
- Of anything of value
- In return for an official action
Criminal law question quid pro quo think of…
-bribery
-compounding a crime
Compounding a crime elements
- Entering into an agreement
- For valuable consideration
- To not prosecute another for a felony or to conceal the commission of a felony or whereabouts of a felon (common law, modern majority rule covers any crime)
Misprision of a felony elements
Common Law
1. Failure
2. By someone other than a principal or accessory before the fact
3. To disclose or report knowledge
4. Of the commission of a felony
Modern Majority
Not a crime
Someone having knowledge of a felony think of…
Misprision of a felony
Insanity defense elements
- A disease of the mind
- Caused a defect of reason
- Such that the defendant lacked the ability at the time of his actions to know the wrongfulness or his actions or understand the nature and quality of his actions
CALFIORNIA VARIATION: if a defendant brings an insanity affirmative defense, the trial is bifurcated. The first phase is guilt. The second phase is insanity.
Some sort of mental issue think of…
-insanity defense
Intoxication defense elements
- Involuntary
- Intoxication
Drugs think of…
Intoxication defense
Infancy criminal defense elements
Under 7, under 14 accused of rape, or under 14 and no clear proof of appreciation of the nature and quality of his act
Minor think of…
Infancy
Self-defense elements
- Without fault
- Amount of force used was no more then individual reasonably believed necessary
- To protect herself from The imminent use of unlawful force
- Upon herself
Defendant not first aggressor think of…
-Self-defense
-defense of others
-defense of a dwelling
-defense of other property
Defense of others elements
Reasonable appearance of the right to use force
Defense of a dwelling elements
- Reasonable
- belief that such conduct is necessary to prevent or terminate another’s unlawful entry into or attack upon her dwelling
Defense of property elements
- Non deadly force
- Used to defend
- Property
- In one’s possession
- From unlawful interference
Someone used force to try to prevent a crime think of…
Crime prevention defense
Crime prevention defense elements
- Used force because one
- reasonably
- Believed necessary to prevent a felony, riot, or other serious breach of peace (majority rule, CALIFORNIA rule is any crime)
Arrest defense elements…
Reasonable force and police officer or reasonable grounds to believe the person had in fact committed the crime
Stopping a suspected criminal think of…
-arrest defense
Police officer think of…
-arrest defense
Right to resist arrest defense elements
- Defendant repelled an attacker
- Trying to arrest them
- Defendant did not know that
Resisting arrest think of…
-resisting arrest defense
Necessity criminal defense elements
- Reasonable belief
- That the conduct was necessary to avoid some harm to society
- That would exceed the harm caused by the conduct
Some sort of greater threat think of…
-necessity
-duress
Duress defense elements
- Threat of imminent infliction of death or great bodily harm
- Reasonable belief his conduct is necessary to prevent the threat
- Did not commit intentional homicide
Mistake of law defense elements
Not a defense
Mistake of law think of…
-mistake of law defense
Consent criminal defense elements
- Non consensual conduct is an element
- Voluntarily and freely given
- By a party legally capable of so giving
- No fraud was involved in so obtaining
Any crime where non-consent is an element think of…
Consent criminal defense
Entrapment defense elements
- The criminal design originated with law enforcement officers
- Defendant was not predisposed
Police encouraged the crime think of…
Entrapment defense
Larceny By Trick Elements…
- Obtaining custody
- Of the property of another
- By a knowing false statement of past or existing fact
- With intent to defraud the other
Tortious battery elements
- Harmful or offensive contact to the person
- Intent
- Causation
Tortious assault elements
- Reasonable apprehension of harmful or offensive contact to the person
- Intent
- Causation
Tortious false imprisonment elements
- Confinement or restraint to a bounded area
- Intent
- Causation
IIED elements
- Extreme and outrageous conduct
- Recklessness
- Causing
- Severe emotional distress
Somebody experiences emotional distress think of…
IIED
Trespass to land elements
- Physical invasion of Plaintiff’s real property
- Intent
- Causation
Someone or something enters real property think of…
Trespass to land
Trespass to chattels elements
- Interference with Plaintiff’s right of possession of chattels
- Intent to perform the act
- Causation
- Actual damages
Someone picks up proper
Conversion elements
- Interference with Plaintiff’s right of possession of chattels
- Intent to perform the act
- Causation
- Damages amounting to the property’s full value
Negligence elements
- Duty
- Breach
- Causation
- Damage
Any torts question think of…
-Negligence
-Strict liability
-Public nuisance
-contributory/comparative negligence
-assumption of risk
Strict liability elements
- Absolute duty to make safe
- Causation
- Damage
Private nuisance elements
- Substantial and unreasonable interference
- With another individuals use or enjoyment of private real property he actually possess or to which he has a right to immediate possession
Some sort of interference with real property think of…
-private nuisance
-public nuisance
Public nuisance elements
Unreasonable interference with the community’s health, safety, or property rights
Vicarious tortious liability elements
Respondeat superior, partnership, joint venture
Partnership or joint venture think of…
Vicarious liability
Torts question anyone employing someone for a job think of…
Respondeat superior
Loss of consortium
Loss of spouse or loss of child
Spouse or parent-child relationship think of…
loss of consortium
Libel elements
- Defamatory statement
- In writing or some other permanent form
Slander elements
- Defamatory language
- of or concerning the plaintiff
- Spoken
- Publication
- Falsity
- Fault
- Damage to reputation
Insulting statement about someone think of…
-libel
-slander
Intentional misrepresentation elements
- Misrepresentation
- Scienter
- Intent to induce Plaintiff’s reliance on the misrepresentation
- Causation
- Justifiable reliance
- Damages
Someone misstates something think of…
-intentional misrepresentation
-negligent misrepresentation
Negligent misrepresentation elements
- Misrepresentation made by defendant in their professional capacity
- breach of duty owed to that particular plaintiff
- causation
- justifiable reliance
- damages
Misappropriation elements
Unauthorized use by Defendant of Plaintiff’s picture or name for Defendant’s commercial advantage
Intrusion upon seclusion elements
- Prying or intruding
- in a manner highly offensive to a reasonable person
- into private affairs
False light elements
- Publicizing facts that place the Plaintiff in a false light
- That false light is highly offensive to a reasonable person
- Actual malice (only required where the published matter is in the public interest)
Public disclosure of private facts elements
- Public disclosure of private information
- Highly offensive to a reasonable person
Any sort of snooping or following think of…
Intrusion upon seclusion
any sort of publication or public statement think of…
-libel
-slander
-misappropriation
-false light
-public disclosure of private facts
Torts question somebody making a business deal think of…
-misappropriation
-interference with business relations
Interference with business relations elements
- Valid business expectancy
- Knowledge
- Intentional interference
- Damage
Malicious prosecution elements
- Institution of criminal proceedings
- Termination favorable to plaintiff
- Absence of probable cause
- Improper purpose
- Damages
Torts question court proceedings think of…
-malicious prosecution
-abuse of process
Abuse of process elements
- Wrongful use of a judicial process for an ulterior purpose
- Some definite act or threat against Plaintiff to accomplish that purpose
Retaliatory eviction elements
- Tenant exercises legal right to report housing or building code violations or other rights provided by statute
- Landlord retaliated in some way related to the housing
Landlord does something negative to tenant think of…
Retaliatory eviction
Constructive eviction elements
- Landlord or agents
- Substantially or materially deprived the tenant of her use and enjoyment of premises
- notice and reasonable time to repair
- Tenant vacated after a reasonable time
Bad conditions in a building think of…
Constructive eviction
Express consent to tort elements
Express showing of actual willingness to submit to defendant’s conduct
Any intentional tort think of…
-express consent
-apparent consent
-consent implied by law
Apparent consent to tort elements
Reasonable person would infer permission from plaintiff’s conduct
Consent implied by law
Emergency situation
Self-defense tort defense elements
- Defendant reasonably believed they were being or were about to be attacked
- Used such force as was reasonably necessary
- Defendant was not the initial aggressor
Defense of others tort defense
- Reasonable belief that the person being aided would have a right to self-defense
- Used no more force than that person would have been allowed to use
Defense of property tort defense
- Request to desist or circumstances made such request futile or dangerous
- Reasonable use of force
- That did not cause death or serious bodily harm
- To prevent a property tort
Re-entry onto land tort defense elements
Common law
1. Tortiously dispossessed
2. Of land lawfully possessed
3. Reasonable force
4. Acted promptly
Modern majority
Does not exist
Someone uses force against a present or past trespasser think of…
Re-entry onto land defense
Recapture of chattels tort defense elements
- Dispossession of lawfully possessed chattel
- Hot pursuit
- Reasonable force
- Not resulting in death or serious bodily injury
someone beats someone for taking their stuff think of…
recapture of chattels defense
Shopkeeper’s privilege defense elements…
- Reasonable
- Detention of an individual
- By a shopkeeper
- Who reasonably believed the detainee possessed goods shoplifted from the shopkeeper
Business owner attacks possible thief think of…
Shopkeeper’s privilege defense
Necessity tort defense elements
- Defendant interfered with another’s real or personal property
- Reasonably
- Out of necessity to avoid threatened injury
- Substantially more serious than the invasion undertaken to avert it
Tortious injury to property of another think of…
Necessity defense
Contributory/comparative negligence effect
Common law: contributory negligence barred recovery
Modern majority: comparative negligence = Plaintiff can recover amount defendant was at fault IF Plaintiff was less than 50% at fault
Assumption of risk tort defense elements
- Plaintiff knew the risk
- Plaintiff voluntarily assumed it
Notice of breach torts defense elements
- Products liability case
- Buyer did not give seller notice of defect within a reasonable time after earlier of knew or should have known
Products liability case think of…
-strict liability
-notice of breach defense
Family immunity tort defense elements
Common law: family members could not sue one another
Modern majority: eliminated for spouses suing one another, children suing parents, and all actions over property damage
Family members potentially suing each other think of…
Family immunity immunity tort defenses
Sovereign immunity tort defense elements
- Defendant is a government unit
- and has not consented to suit
Potential suit against any government unit think of…
Sovereign immunity
Charitable immunity effect
Common law: absolute
Modern majority: does not exist
Charity potentially a defendant think of…
Charitable immunity
Where is truth a defense and what is its effect?
To libel and slander, it is an absolute defense
libel or slander action think of…
-truth defense
-absolute privilege
-qualified privilege
To what is absolute privilege a defense?
Libel and slander
Where are statements absolutely privileged?
-judicial proceedings?
-legislative proceedings?
-executive proceeding, where statement is reasonable related thereto
-communications between spouses
Qualified privilege defense elements
- Action for libel or slander
- Statement was an accurate report of a statement that was false, made to an official actor in their official capacity, a commentary on a subject of general public interest, made to defend one’s own action, property, or reputation, one the recipient had an interest in and was not made by an intermeddler, or one of common interest between the defendant and the recipient
- Speaker was not reckless or worse as to the statement’s falsity
When should a judge sustain a relevance objection?
FEDERAL: The offered evidence has zero tendency to make any material fact more or less likely.
CALIFORNIA: the offered evidence has zero tendency to make any material, DISPUTED fact more or less likely.
Evidence question think of…
-relevance
-403
When should a judge sustain a 403 objection?
When the offered evidence’s probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Insurance think of…
alluding to insurance objection
Subsequent remedial measures think of…
-Subsequent remedial measures objection
-NOTE: in CALIFORNIA this rule only applies in negligence, not strict liability, cases
Settlement or mediation discussion think of…
alluding to settlement offer objection
NOTE: in CALIFORNIA this applies to mediations too
Any mention of medical expenses think of…
alluding to offer to pay medical expenses objection
NOTE: in CALIFORNIA this applies to accompanying statements
Any mention of some sort of criminal plea think of…
alluding to plea negotiations objection
When should the judge sustain a lack of authentication objection?
The proponent did not produce evidence sufficient to support a finding that the item is what the proponent claims it is.
Someone offers any sort of documentary or real evidence think of…
-lack of authentication objection
-not best evidence objection
-duplicate substitution exception to best evidence rule
When should a court sustain a not best evidence objection?
A non-original writing, recording, or photograph is being offered to prove its content.
NOTE: in CALIFORNIA this is called a secondary evidence objection
Any witness who potentially was not a first-hand witness think of…
lack of personal knowledge objection
Witness is having trouble remembering think of…
Witness cannot recall objection (goes to competency)
Witness is having trouble talking think of…
Witness cannot communicate objection (goes to competency)
Witness is about to testify without having been sworn think of…
Witness hasn’t been sworn objection (goes to competency)
Interpreter think of…
interpreter not sworn objection (goes to competency)
Witness is an atheist think of…
Witness lacks religious beliefs objection
When should a judge sustain a witness lacks religious beliefs objection?
Never
Minor testifying think of…
Infancy objection (goes to competency)
When should a judge sustain an infancy objection?
Never
Possibly mentally ill witness think of…
insanity objection
When should a judge sustain an insanity objection?
Never
Witness has a criminal record think of…
Felon objection
When should a judge sustain a felon objection?
Never
When should a judge sustain a witness has an interest objection?
Never
Witness cares who will win think of…
-Witness has an interest objection
-Dead man’s act objection
Judge asked to testify think of…
Rule that judges may not testify in proceedings they are overseeing
Juror asked to testify think of…
juror as witness objection
when should a judge sustain a juror as a witness objection?
When the juror is being asked to testify in a proceeding in which they are a juror, or is being asked to testify about jury deliberations EXCEPT to ask about whether extraneous prejudicial information or improper information being brought to bear on deliberations, mistake on a verdict form, or whether any juror made a clear statement that he racial animus or bias was a significant motivating factor in his voting to convict a criminal defendant
When should a judge sustain a dead man’s act objection?
Never
Counsel asks a question that ends in “right,” or “correct” or something similar think of…
leading objection
When should a judge sustain a leading question objection?
Non-adverse witness and not laying foundation
“Have you stopped beating your wife” type question think of…
misleading question objection (under 611(a))
Compound question think of…
Compound question objection (611(a))
Combative question think of…
-Argumentative question objection
-Harassing question objection
-Unduly embarrassing question objection
(611(a))
Conclusory question think of…
Conclusory question objection (611(a))
Question contains a factual premise think of…
Assumes facts not in evidence objection (611(a))
Question already asked and answered think of…
Asked and answered objection (611(a))
Question that necessitates a long story answer think of…
Calls for narrative objection (611(a))
Question asks a witness to speculate or theorize think of…
Calls for speculation objection (611(a))
Question asks for facts witness does not have personal knowledge of think of…
lacks foundation objection
Answer possibly doesn’t answer the question think of…
motion to strike nonresponsive answer (611(a))
Witness gives an opinion think of…
-improper opinion objection
-motion to strike improper opinion
-proper lay opinion testimony exception
-expert testimony
When should a judge grant an improper opinion objection or a motion to strike improper opinion?
-opinion without basis
-opinion beyond scope
Expert witness think of…
-Daubert motion
-Beyond the scope objection
Cross exam probes matter not touched on in direct think of…
Beyond the scope objection
When should a judge grant a beyond the scope objection?
Either questions probe an expert witness outside of what the judge qualified him to discuss
Or cross questions go into areas not discussed on direct
(except credibility, which is always relevant).
When should a judge grant a bolstering before witness has been impeached objection?
FEDERAL AND CALIFORNIA CIVIL:
One side attempts to introduce evidence bolstering a witness’s credibility before it has been attacked
OR
the bolstering is done with a prior consistent statement that occurred AFTER a prior inconsistent statement used to impeach
CALIFORNIA CRIMINAL: never
Someone bolsters a witness’s credibility think of…
-bolstering before witness has been impeached objection
-statement of prior identifcation exception
When should a judge grant an attorney-client privileged objection?
- Confidential (presumed in CALIFORNIA)
- Communication
- Between attorney and client
- As part of a legal consultation
- the client is alive or the client is dead but the estate has not been discharged and distributed (CALIFORNIA only)
When should a judge grant a physician-client privilege objection?
Federal rules: never
California:
1. Communication
2. Between a patient
3. and someone the patient reasonably believes is a physician or their agent
4. For the purpose of seeking medical treatment
5. Objection is made in a civil non-commitment proceeding
6. Physician or their staff had no other legal obligation to disclose the information
When should a judge grant a psychotherapist-client privileged objection?
- Confidential (presumed in CALIFORNIA)
- Communication
- Between a psychotherapist (including social worker, CALIFORNIA any counselor that does anything mental-health-adjacent although not a court-appointed therapist) and client
- As part of a psych consultation
- the therapist had no other legal obligation to report the information (CALIFORNIA only)
- objection not made in a competency proceeding (CALIFORNIA only)
Question probes a conversation between two people think of…
-privilege objections
-spousal immunity
When should a judge grant a spousal immunity objection?
Federal rules two ways.
A:
1. Spouse (or registered domestic partner in California_
2. Called to testify in criminal case (not an element in California)
3. Where their spouse is a defendant
B:
1. Spouse (or registered domestic partner in California)
2. Compelled to testify
3. Against their spouse
When should a judge grant a spousal privileged objection?
- Question probes a communication
- Made confidentially (presumed in CALIFORNIA)
- Between spouses
- During marriage
When can a witness refuse to answer a question on fifth amendment basis?
His answer to the question may expose him to criminal liability.
Question may incriminate witness think of…
fifth amendment
When should a judge sustain a clergy-penitent privileged objection?
- Confidential (presumed in CALIFORNIA)
- Communication
- Between a religious minster and a person
- As part of a religious consultation
- Minister routinely receives such communications (California only)
- Minister’s religion requires such communications to be kept secret (California only)
When should a judge sustain an accountant-client privilege objection?
Never.
When should a judge sustain a journalist privilege objection?
Federal rules: never
California: question requires a journalist to reveal a confidential source or unpublished background material
When should a judge grant a government privileged objection?
Federal rules:
1. Question seeks communication
2. Of non-public information
3. By or to a government official
California:
-Federal or state statute forbids disclosure
OR
-the public interest in keeping the information confidential outweighs the need for disclosure
When should a judge grant a hearsay objection?
- Out of court statement
- Offered to prove the truth of the matter asserted
Evidence of a statement is offered by someone other than the person that made that statement think of…
-hearsay
-crawford
-hearsay exceptions
-fifth amendment violation
-public safety miranda exception
-impeachment miranda exception
Witness discusses what they previously said think of…
-hearsay
-hearsay exceptions
When should a judge grant an executive privileged objection?
Questions seeks presidential documents or conversation’s disclosure.
List of the privileges of which I should know
-Attorney-client
-Physician-client
-psychotherapist-client
-spousal
-journalist
-government
-accountant-client
-executive
When is a matter moot?
It is not a real, live controversy.
When is a matter not ripe for review?
- It relies on uncertain or contingent future events
- A party would not have to risk substantial hardship to provoke review
What is a political question?
-An issue committed by the Constitution to the executive or legislative branch
OR
-An issue inherently incapable of resolution and enforcement by the judicial branch
Someone seeking injunctive relief think of…
-mootness
-ripeness
When will the supreme court decide to hear a case because decided upon adequate and independent state grounds?
- The appeal comes from a state court
- The state court decided it on state grounds that were fully dispositive of the case
- Not based on federal law (even by analogy)
Supreme court asked to review or reviewing a state court decision think of…
adequate and independent state grounds
When should a federal court invoke pullman abstention?
- The issue presented is one of federal constitutional law
- Premised upon an unsettled state law question
Mixed federal and state law question think of…
Pullman abstention
When should a federal court invoke Younger abstention?
When asked to enjoin state criminal proceedings.
Request to enjoin judicial proceedings think of…
Younger abstention
What does eleventh amendment immunity bar?
-Actions against state governments for damages
-Actions against state government for injunctive or declaratory relief where the state gov is named as a party
-Actions against state government officials that could result in damages that would be paid out of the state treasury
-Actions against state government officials that could result in quieting title to land currently held by the state
-Actions against state government officials for violating state law
Suit or potential suit against a gov or gov agent think of…
-Eleventh amendment immunity
-Eleventh amendment immunity bankruptcy proceedings exception
-Express eleventh amendment immunity waiver
-Ex parte young exception
-Congressional removal fourteenth amendment exception
What constitutes a dormant commerce clause violation?
-A state’s action discriminates against out of state interest to benefit local economic interests
-A state’s action unduly burdens interstate commerce
State policy enacted think of…
Dormant commerce clause
When is a state law expressly preempted?
- A federal law explicitly defined state law types and said they’re preempted
- The state law falls within that definition’s ambit
When is a state law impliedly preempted through actual conflict?
It and a federal law cannot logically be rectified
State, federal law, treaty, and/or executive agreement appear to have a conflict think of…
-preemption
-supremacy of laws order
When is a state law impliedly preempted through objective achievement prevention?
It prevents achievement of a federal law’s objective.
When is a state law preempted by field preemption?
- Congress enacted a federal law
- It intended to preempt all state laws in that field
Types of preemption to know.
-express
-implied through actual conflict
-implied through objective achievement prevention
-field
When has an interstate compacts clause violation occurred?
- Multiple states enter into an agreement
- That increases their political power
- At federal supremacy’s expense
- Without congress’s consent
Multiple states reach an agreement think of…
Interstate compacts clause
When has an anti-commandeering doctrine violation occurred?
- Congress passed a statute
- Commandeering state officials
- To regulate their own citizens
Law explicitly or effectively compels state officials to act think of…
anti-commandeering doctrine
When has federal spending become unduly coercive
When it is no longer an incentive but is equivalent to compulsion or undue influence.
Congress conditions grant money on states taking certain actions think of…
unduly coercive prohibition doctrine
When has there been an intergovernmental immunity doctrine violation?
- state action
- regulates or discriminates against the federal government
State action affects another gov think of…
intergovernmental immunity doctrine
Privileges AND immunities clause violation elements.
- State action
- Discriminates against
- Nonresidents
- Concerning fundamental rights
Privileges OR immunities clause violation elements.
- State action
- denies their citizens
- a federal right
State action affects citizens think of…
-privileges and immunities clause
-privileges or immunities clause
What is a fundamental right?
A right explicitly mentioned in the constitution
OR
1. Deeply rooted in the nation’s history and tradition
2. Essential to ordered liberty’s concept
When does a state tax violate the equal protection clause?
It discriminates against out of state businesses.
State tax think of…
-equal protection
-dormant commerce clause
-import export clause
Contract clause violation elements.
- State
- Enacts legislation
- That retroactively
- Impairs contract rights
Contract affected by gov action think of…
Contract clause
What is a bill of attainder?
- Legislative act
- Inflicts punishment
- Without a judicial trial.
Someone legislates immediate consequences think of…
-bill of attainder
-ex post facto
What are an ex post facto clause violation’s elements?
- Legislation
- Retroactively alters
- the criminal law
- In a substantially prejudical manner
- So as to deprive a person of any right previously enjoyed
- for the purpose of punishing that person for a past activity
What are an unconstitutional taking’s elements.
- Government taking
- Of private property
- Either not for public use or without just compensation
Government action affects private use or enjoyment of property think of…
-eminent domain
-takings clause
Congress passes any law think of…
basis
What is necessary for a law to pass strict scrutiny?
- Necessary
- To achieve a compelling government prupose
Law discriminates or has discriminatory effect against a suspect class think of…
Strict scrutiny
Fundamental right impacted by a law think of…
Strict scrutiny
What are the suspect classes?
-race
-national origin
What is necessary for a law to pass intermediate scrutiny?
- Substantially related
- To an important government interest
Any legislation passed think of…
Appropriate level of scrutiny
Law discriminates or has discriminatory effect based on gender or legitimacy think of…
intermediate scrutiny
When does a law fail rational basis?
EITHER not serving a legitimate interest
OR not rationally related to its interest
When does a law fail fair notice?
As-applied, it did not give fair notice that the sanction conduct was illegal.
Anyone sanctioned in a con law hypo think of ….
fair notice
When does a law violate the second amendment?
- The second amendment’s plain text covers it
- The government cannot show that it is consistent with the country’s historical tradition of firearm regulations
Any law impacting weapons think of…
Second amendment
When does a law violate the establishment clause?
Considering historical practices and the founding fathers’ understanding, the law is sponsoring a religion
Any law helps a religious organization think of…
establishment clause
What violates the free exercise clause?
- Government action
- Negatively impacts someone
- The government took that action because of
- That person’s religious beliefs
Law impacts religion think of…
free exercise clause
Gov actor mentions religion at all think of…
-establishment clause
-free exercise clause
When is the first amendment implicated…
- Government regulation of
- Private citizen’s speech
Speech impacted in any way think of…
-First amendment
-Whether the speech is unprotected
When has the right of access been violated
- Someone is banned from attending a criminal trial
- Without the trial judge articulating why some other interest outweighs the right of access interest
When has a procedural due process violation occurred?
- Government action
- Denied someone of life, liberty, or property
- Some procedural mechanism was lacking
- balancing that procedural mechanism’s importance against the value of the life, liberty, or property lost, and the government’s interest in efficiency, that mechanism should have been included.
Someone loses something think of…
Procedural due process
What must a lawyer show to authenticate by the reply letter doctrine?
- Writing
- written in response to a communication
- sent to the claimed author
- letter’s content makes it unlikely that it was written by anyone other than the claimed author
When are statements admissible under the ancient documents rule?
- The statements are relevant
- They come from a document
- That has been authenticated
- That is relevant
- That was prepared before 1 January 1998 (California rule is document is more than 30 years old)
What must a lawyer show to authenticate by the business records doctrine?
Federal:
1. The records were generated by an electronic process or copied from an electronic device
2. the records are certified by a custodian or other qualified person
3. The offering party gives the adverse party reasonable written notice and provides fair opportunity for inspection so the adverse party can challenge the records if they want to
California: cannot be done
When should a judge deem official publications authenticated?
Always
Writing being offered into evidence think of…
-authentication
-best evidence rule
-rule of completeness
-ancient documents exception
-official publications doctrine
-business records doctrine
-handwriting authentication
-business records hearsay exception
-hearsay
How can a lawyer authenticate a voice?
Either:
1. A witness who has heard the purported speaker’s voice before
2. Offers their opinion that the voice is that of the purported speaker
Or:
1. The statement was made during a telephone conversation
2. A party to that conversation says that the purported speaker indeed was the statement maker
Lawyer attempts to offer a voice recording into evidence think of…
authentication
How can a lawyer authenticate a document by handwriting
- Part of it is handwritten
- A lay witness with personal knowledge of the purported writer’s handwriting says that the writing on the document is the purported writer’s handwriting OR a qualified handwriting expert compares a known copy of the purported writer’s handwriting to the document and opines that the purported writer is the writer
How must a lawyer authenticate an x-ray?
- Must show that the machine was in working order
- Must show that the operator was qualified to operate it
- Must establish chain of custody of the x-ray pictrue
X-ray picture being offered into evidence thnk of…
authentication and x-ray specific authentication doctrine
Improper
When can a lawyer get into a witness’s prior bad act to impeach credibility?
- On cross
- The act was a past immoral, vicious, or criminal act (California MUST be an act of moral turpitude)
- That may affect his character
- And show him to be unworthy of belief
- Counsel acts in good faith upon reasonable belief that the prior bad act actually happened
- Counsel doesn’t introduce extrinsic evidence of the prior bad act, they only ask the witness themselves about it (California not a rule)
- Counsel doesn’t reference any consequences of that bad act
NOTE: in California this is only available in criminal cases, not allowed in civil cases.
NOTE 2: if on direct a witness states “I’ve never X,” then a lawyer may impeach and the above doesn’t apply
Witness has done something bad in the past or lawyer tries to get into that past bad act…
-Prior bad acts rule
-Prior convictions rule
When can a lawyer introduce prior convictions to impeach credibility in court?
NOTE, this is a special area where 401 and 403 effectively don’t apply
FRE (COMPLICATED)
PRIMA FACIE:
-crime involved dishonesty or false statement: always
-other crime AND witness being impeached IS the defendant in a criminal case: not unless prosecution can show that its probative value outweighs its prejudicial effect
-all else: apply 403
EXCEPTIONS, inadmissible if:
-more than 10 years since conviction date or release date, whichever is later
-conviction was pardoned or equivalent
-juvenile conviction offered to impeach the accused
-constitutionally defective conviction
CALIFORNIA (SIMPLE)
-felonies involving moral turpitude: always
-misdemeanors involving moral turpitude: criminal cases only
-all else: no
A lawyer tries to introduce evidence to make the propensity argument think of…
Character evidence objection
When should a judge sustain an alluding to insurance objection?
The insurance evidence is offered to show that a person acted negligently (or worse)
Who can waive a privilege?
The privilege holder.
What are the elements of the crime-fraud exception to attorney-client privilege?
- The conversation occurred as part of a client seeking advice
- To aid in the planning or execution of something the client knew or should have known was a crime or fraud
- California only: not about the medicinal or adult use of cannabis
Attorney-client privilege think of…
crime-fraud exception
When does a duplicate satisfy the best-evidence rule?
- It is an exact copy of the original (or in CALIFORNIA other written evidence of the original’s content)
- There is no genuine question about its authenticity
- Under the circumstances, it would not be unfair to admit the duplicate in the original’s place
When can a lawyer elicit lay opinion testimony?
- Rationally based on the witness’s perception
- Helpful to a clear understanding of her testimony or understanding a fact in issue
- Not based on what should be expert knowledge
When is expert opinion testimony admissible?
- It would help the trier of fact
- based on sufficient facts
- Product of reliable principles and methods
- Reasonably applied
What is a reliable scientific method?
Federal:
1. Tested
2. Published in a peer-reviewed journal
3. Known potential error rate
4. Standards exist that control its operation
5. generally accepted in the relevant field (this is the only factor in California)
Hearsay exceptions to the tune of party in the usa
I’m unavailable with former testimony
Party admissions made against me
I made a statemen to my physician
and a business records on
and a business records on
and a business records on
Present sense impression
a declaration
made when you’re about to die
statements against interest
excited utterance
statement of conditions
that existed then
forfeiture by wrongdoing
yeeeeaaaaaaah, it’s an exception to hearsay
Former testimony hearsay exception elements.
- Declarant is unavailable
- The statement was former testimony
- offered then against the same party or a predecessor in interest (in CALIFORNIA this needs only be someone who had some interest)
ALSO, ONLY IN CALIFORNIA, YOU GET AN ADDITIONAL WAY:
1. civil case
2. the statement was former testimony
3. in a deposition
4. the declarant lives more than 150 miles from the trial
What are the elements of the party admission hearsay exception?
It is what it sounds like. Note that under the federal rules this is technically considered “not hearsay,” rather than an exception.
What are the statement seeking medical treatment hearsay exception elements?
FEDERAL:
1. Made for medical diagnosis and treatment
2. Reasonably pertinent to medical diagnosis and treatment
3. Described a person’s medical history, past or present symptoms, or their inception or general cause
CALIFORNIA:
1. Declarant is a minor at the time of the proceedings
2. Declarant was under 12 when they made the statement
3. Statement was made for the purpose of medical diagnosis or treatment
4. Statement described an act or attempted act of child abuse or neglect
What are the present sense impression hearsay exception elements.
- Statement described or explained an event or condition (in CALIFORNIA the statement must explain the declarant’s own conduct)
- It was made while or immediately after the declarant perceived that event or condition
- it was not made under suspicious circumstances (CALIFORNIA only)
What are the dying declaration hearsay exception elements.
- criminal homicide trial or civil case. (not an element in CALIFORNIA)
- Made by a now-unavailable declarant (CALIFORNIA must be now dead)
- While believing his death was imminent
- Concerned the cause or circumstances of what he believed to be his impending death. (CALIFORNIA must concern cause of death specifically)
What are the elements of the statement against interest hearsay exception?
- Declarant is unavailable
- Statement was so against the declarant’s pecuniary or proprietary interest OR had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to legal liability, that the declarant would not have made it if they did not believe it to be true (California this also includes contrary to social interest)
- At the time it was made the declarant had personal knowledge of the facts
- and was so aware that the statement was against their interest that they had no motive to lie
- corroborating circumstances indicating the statement’s trustworthiness (FEDERAL CRIMINAL only)
What are the elements of the excited utterance hearsay exception?
- Statement made during or soon after a startling event
- under the stress of excitement of that event
- The statement related to that startling occurrence
Note: in california this is called the spontaneous statement exception
What are the elements of the past physical condition hearsay exception?
What it sounds like.
California rule gives judge discretion to exclude statements made under suspicious circumstances.
What are the elements of the forfeiture by wrongdoing hearsay exception?
- Declarant is unavailable
- Testimony is offered against a party that caused that unavailability
- Wrongfully
- trustworthy (CALIFORNIA only)
When is a declarant unavailable?
-dead
-to sick to testify
-beyond subpoena power
-privileged out of testifying
-refuses
-can’t recall (in CALIFORNIA this requires total memory loss)
-CALIFORNIA: scared to testify
When should a judge take judicial notice?
- Requested (California this is not an element if the facts are universally known)
- generally known within the trial court’s territorial jurisdiction OR can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned
Can parties stipulate to authenticity?
Yes
When should a judge allow a jury view of a scene?
The importance of the information to be obtained is great and the ease with which it could be obtained through normal courtroom methods is small
What are the propensity argument exceptions?
-a criminal defendant
-the prosecution (1) once that defendant opens the door (2) about the victim’s good character for the same trait if the defendant attacked that victim’s character OR the defendant’s bad character for the same trait (no matter if D went after victim’s character or his own) (CALIFORNIA this only can be done to when the defendant introduced evidence that they themselves are not violent)
-the prosecution in a homicide case where defendant argues self-defense because the victim was the first aggressor, here the prosecution can only offer evidence of the victim’s trait for peacefulness (Not in california)
-Impeaching a character witness
-sexual misconduct case specific acts of past sexual misconduct (CALIFORNIA criminal only BUT also includes domestic violence and elder abuse)
When the propensity argument is allowable, how can it be made?
FEDERAL:
-opinion or general community reputation evidence
-specific acts of misconduct on cross of a character witness (eg did you know that …)
-specific acts of sexual misconduct against a defendant accused of sexual misconduct when offering party discloses to D at least 15 days before trial or later with good cause (in california this rule only exists in criminal cases, but also applies to acts of domestic violence and elder abuse)
CALIFORNIA: opinion evidence, reputation evidence, and specific acts evidence.
When should the judge sustain a rape shield objection?
Criminal case:
1. some sort of sexual misconduct charge
2. Evidence is offered to prove victim’s sexual behavior or disposition (California also covers manner of dress)
3. Not to prove source of semen, injury, or other physical evidence, OR consent (for this last one, only evidence of past sexual behavior WITH defendant can be used)
4. NOT the prosecution OR a defendant after prosecution has opened door (CALIFORNIA only)
Civil case:
1. some sort of sexual misconduct charge
2. Evidence is offered to prove victim’s sexual behavior or disposition
3. probative value does NOT substantially outweigh harm to alleged victim + unfair prejudice to prosecution
No civil ban in california
sexual misconduct case and evidence hypo think of…
rape shield
What are the elements of standing?
- Injury
- Causation
- Redressability
What are the elements of organizational standing?
- Injury to the members
- Related to the organization’s purpose
- Claim and relief don’t require individual participation
What are the elements of tax and spend standing?
- Plaintiff challenges a law enacted under congress’s tax and spend power
- For exceeding that power
What are the elements of free speech overbreadth standing
- Plaintiff brings a claim that the government restricted substantially more speech than necessary
- It was not a restriction on commercial speech
Court proceeding con law hypo think of…
-general standing
-organizational standing
-tax and spend standing
-free speech overbreadth standing
What are the elements of an eleventh amendment immunity structural waiver?
- The suit is brought pursuant
What are the elements of the ex parte young exception?
A state officer is being sued for an injunction against future actions.
What are the elements of congressional removal of eleventh amendment immunity under the fourteenth amendment?
- Congress passed a law pursuant to its fourteenth amendment powers to prevent discrimination
- Congress made its intent to remove 11th amendment immunity clear
When I get a question asking whether congress had a basis for passing a law, what is always the answer?
YES just pick the best of:
-commerce
-tax and spend
-fourteenth amendment
-necessary and proper
-war powers
-police power
-power over citizenship
-admiralty power
-coin money power
fix weights and measures power
-IP power
-impeachment power
Two main reasons a bar question may have a no answer
-congress attempts to use the police power outside of where they can
-congress exceeds their authority to delegate
Congress passes a law in a con law hypo think of…
Basis
When can congress use its investigatory power?
It has been expressly or impliedly authorized by the congressional house concerned. NOTE: this power is very broad.
Congress calls witnesses, subpoenas something, or otherwise tries to gather information think of…
investigatory power
When can the government exercise eminent domain?
- For the purpose of effectuating an enumerated power (only an element for congress)
- For public use (note: construed broadly, Kelo)
Who holds the police power?
Federal gov within federal territories, military bases, indian reservations, and DC
The states everywhere else
When can congress delegate?
- They act within one of their enumerated powers
- That power is not uniquely confined to congress
- The delegation includes intelligible standards for the delegate to follow
What is needed to create a treaty?
- Executive agreement
- Two-thirds of the senate ratifies it
Order of law supremacy.
- Constitution
- Federal law or treaty, whichever is latest in time
- executive agreement
- State law
Who can the president appoint?
-ambassadors
-public ministers
-scotus justices
-other officers of the united states
-other positions congress gives him the power to appoint to
President tries to hire someone think of…
appointment power
Who can the president remove?
-cabinet members
-sole head of an independent agency that has significant executive authority
-all other executive appointees subject to any congressional limitations
President tries to fire someone think of…
removal power
Who can the president pardon?
Anyone from past or future federal criminal convictions.
Congress tries to limit the pardon power think of…
pardon power
President tries to pardon someone from a state crime think of…
Fact that pardon power only covers federal criminal charges
President tries to pardon someone from impeachment, civil liability, or civil contempt think of…
Fact that pardon power doesn’t cover these things
What are the limitations on the president’s veto power?
-Congress can override with a two-thirds vote
-The president has ten days to do so
-The president cannot line item veto
What is the answer if a question asks whether a president’s ordering troop movements is unconstitutional
Almost always yes, even without a formal declaration of war.
When does the import export clause allow states to tax foreign imports or exports
imports: with congressional consent
exports: never
What types of speech are unprotected?
- clear and present danger
- fighting words
- obscenity
- defamation
- false or deceptive advertising
- gov demonstrates a compelling interest in regulating the speech
What are the courts’ subject-matter jurisdictions?
-Federal: limited
-State: general
Jurisdiction hypo think of…
-subject-matter
-personal
-venue
NOTE: analyze venue before personal jurisdiction, because if you don’t have venue, you don’t have personal jurisdiction
When should a judge grant a motion to dismiss for lack of personal jurisdiction?
-The state in which the court sits’s personal jurisdiction statute doesn’t allow it,
-The defendant does not have contacts with the state that makes the exercise of jurisdiction fair and reasonable, OR
-The defendant was not given appropriate notice and an opportunity to be heard
When should a judge grant a motion to dismiss for improper service of process?
-service was executed by a minor
-service was executed by a party to the action
-service was neither personal nor to an authorized agent nor to an active residence of the served party’s
-service was of a minor or incompetent person and not in accordance with the rules of the state in which service was made
-service was not made within 90 days of the complaint’s filing and the court did not extend that period for good cause
Facts discuss service of process think of…
-Motion to dismiss for improper service of process
-service of process exceptions
What are the exceptions to the FRCP’s service of process requirements
-service was proper under the rules of the state in which the federal court hearing the action sits
-service was proper under the rules of the state in which service was effected
-waiver
When should a judge grant a motion for default based on failure to timely answer the complaint?
-the complaint was not answered within 21 days
-waiver and the complaint was not answered within 60 days
Civ pro hypo and the facts note specifically that no one answered think of…
Motion for default based on failure to answer
When should the judge grant a motion to dismiss for failure to state a claim?
Taking the facts (not conclusory statements) pled as true, that the claimed legal violation occurred is not plausible
When is a claim factually insufficient?
When should a jduge grant a motion for summary judgment?
- There is no genuine issue of material fact
- the movant is entitled to judgment as a matter of law.
Civ pro hypo details what the complaint says think of…
motion to dismiss for failure to state a claim
When should a judge grant a motion for judgment as a matter of law?
- The case has not yet been submitted to the jury
- the nonmovant has been fully heard on the matter at trial
- a reasonable jury would not have a legally sufficient basis to find for the nonmovant on that issue
When should a judge grant a renewed motion for judgment as a matter of law
- Trial is over
- It has been less than 28 days after the entry of judgment
- the movant moved for judgment as a matter of law during trial
- now, judgment as a matter of law should be granted.
Civ pro hypo goes into the evidence that both sides have think of…
-motion for summary judgment
-motion for judgment as a matter of law
-renewed motion for judgment as a matter of law
When should a judge grant a motion to dismiss for failure to join a party?
- Plaintiff did not join a party
- Relief could not be accorded without that party OR that party has such an interest in the subject matter that his absence will impair or impede his ability to protect that interest or will leave any other party subject to a substantial risk of incurring multiple or inconsistent obligations
- The court would have personal and subject matter jurisdiction over the joined party
- That party is indispensable considering prejudice, adequacy of judgment without the party, and adequacy of remedies plaintiff may be able to have in another forum if the case is dismissed
Civ pro hypo always think of…
Were all possible defendants sued, if not, analyze potential motion to dismiss for failure to join an indispensable party.
When is a claim precluded?
Either:
1. Final judgment
2. On the merits
3. Same cause of action
OR
plaintiff previously sued defendant, and the claim arises out of the same transaction or occurrence they previously sued aobut
OR
plaintiff was previously sued by defendant, and the claim arose out of the same transaction or occurrence defendant previously sued about.
When is an issue precluded?
- Actually litigated
- Essential to the prior judgment
Civ pro hypo mentions prior litigation think of…
-claim preclusion
-issue preclusion
When should a judge grant a motion to sever claims?
EITHER
1.multiple plaintiffs or multiple defendants
2. No claim arises out of a transaction or occurrence in which all parties were involved
OR
It’s a crossclaim that does not arise out of the same transaction or occurrence as the main action
Civ pro hypo discusses a complaint with multiple claims think of…
Motion to sever claims
When should a class be certified?
- Numerosity
- Common question of law or fact
- Named parties interest are typical of the class
- Named representatives will ensure the fair and adequate representation of the interests of absent members of the class
- separate actions would create a risk of inconsistent results, impar the interest of other absent members, injunctive or declaratory relief is appropriate for the class as a whole, OR the common questions of fact or law predominate over individual issues
Class action think of…
Class cert
When should a motion to sever parties be granted?
-Some plaintiff does not have a claim against each defendant
-You cannot find a common fact or occurrence that gives rise to at least one claim that each plaintiff has brought against each defendant, OR
-No common question of fact or law common to all parties
Civ pro hypo with multiple possible plaintiffs or defendants think of…
-motion to sever parties
-motion to implead
When may a party implead a nonparty?
- Impleading party is a defendant
- Impleaded party may be liable for all or part of the judgment should the plaintiff recover against them
When should a judge grant a motion to compel discovery?
- The movant has in good faith conferred or attempted to confer
- The movant certifies this
- The discovery sought is relevant
- The discovery sought is nonprivileged
- The discovery sought is proportional to the needs of the case
What are the elements of diversity jurisdiction?
- Complete diversity between opposing parties
- Amount in controversy exceeds $75,000
What are the types of federal court subject matter jurisdiction tested?
-Diversity
-Federal question
-Removal
-Supplemental
What are the elements of federal question jurisdiction?
The claim arises under federal law
What are the elements of removal jurisdiction?
- Plaintiff files in state court
- Defendant moves to remove to the federal court that embraces the state court where the Plaintiff filed the action
- Federal court would have had subject-matter jurisdiction at the outset
- Defendant acts within 30 days of when they should have known that the claim was removeable
- Defendant acts within one year of the action’s commencement
What are the elements of supplemental jurisdiction?
- The claim arises from a transaction or occurrence
- That gives rise to another claim plaintiff has brought
- Over which the federal court has some other type of jurisdiction
EXCEPTION: this doesn’t extend to third-party impleader claims where element (3) can only be met by diversity.
What are the ways a lawyer can establish that venue is proper?
Way 1:
claim is brought in a judicial district in which any defendant resides
Way 2:
1. All defendants are residents of the same state
2. The judicial district is in that state
Way 3:
A substantial part of the events, omissions, or property giving rise to the action was/is in that district
Way 4:
1. None of the above work
2. That court has personal jurisdiction over any defendant
What establishes general constitutional personal jurisdiction?
The defendant is at home in that state.
What establishes constitutional specific jurisdiction?
The cause of action arises from the defendant’s in-state activity AND fairness.
What is a search?
- Government intrusion
- Into an area where a person has a reasonable and justifiable expectation of privacy.
What is a seizure?
- Exercise of control
- By the government
- Over a person or thing
Crim pro hypo someone snooping or entering premises around think of…
-search
-warrant
-permissible investigatory stop and frisk
-permissible automobile search
-permissible plain view search
-consent to warrantless search
-hot pursuit
-exigent circumstances
-evanescent evidence
-emergency aid
-contaminated food
-highly regulated industries exception
-inventory search
-airline passengers exception
-public school exception
-parolee exception
-gov employee’s file cabinet and desk exception
-drug testing exception
-border search exception
Crim pro hypo someone makes another person or thing potentially not free to leave think of…
-seizure
-warrant
-permissible investigatory stop
-permissible automobile stop
-permissible plain view seizure
When should a judge grant a motion to suppress evidence as fruit of the poisonous tree?
- The evidence was obtained or derived from exploitation of illegally obtained evidence
- The only illegality was a non-purposeful miranda violation
Multiple pieces of evidence obtained in a crim prop hypo think of…
fruit of the poisonous tree
When should a judge grant a motion to suppress evidence obtained as a result of a gerstein violation
- Significant pretrial constraints on the defendant’s liberty existed
- No probable cause determination was made within a reasonable time (presumptively 48 hours)
- Evidence was obtained as a result
Crim pro hypo specifically mentions a probable cause hearing or a lack thereof think of
Motion to suppress as a result of a gerstein violation
When has an excessive bail violation occurred
Bail was set higher than necessary than to assure defendant’s appearance at trial
Crim pro hypo mentions pretrial detention or bail think of…
Excessive bail prohibition
When should a judge grant a motion to dismiss for a speedy trial violation?
The balance of the following factors tips in the defendant’s favor:
1. length of the delay
2. reason for the delay
3. assertion of right
4. Prejudice to him
Crim pro hypo mentions a long time from indictment to trial think of…
motion to dismiss for a speedy trial violation
When should a judge grant a motion to continue because the defendant is incompetent to stand trial?
-Defendant lacks a rational as well as factual understanding of the charges and proceedings OR
-lacks sufficient present ability to consult with her lawyer
Criminal defendant seems not with it think of…
motion to continue because the defendant is incompetent to stand trial
When must a judge grant a request for a criminal jury trial?
D is charged with at least one offense for which he can be sentenced to more than six months incarceration.
Crim pro hypo mentions bench trial or potential sentence lengths think of…
Request for a criminal jury trial
When must a judge grant a motion for acquittal not withstanding verdict based on inconsistent verdicts?
Never
Criminal verdicts that don’t make sense think of…
Motion for acquittal not withstanding verdict based on inconsistent verdicts
When should a request for counsel be granted?
- Criminal proceeding
- Formal charges have been filed
Somebody asks for a lawyer think of…
Request for counsel
When has counsel rendered ineffective assistance
What must a lawyer establish to show that past criminal defense counsel was ineffective?
- deficient performance
- but-for prejudice
Criminal defense lawyer seems to be bad think of…
ineffective assistance of counsel
When should a judge grant a crawford objection?
- Criminal proceeding
- Hearsay under the common law definition
- Statement was testimonial
- Declarant is available OR defendant had no prior opportunity to cross-examine
What is the burden of proof in a criminal trial?
The prosecution must prove all elements of the offense charged beyond a reasonable doubt
When should an appels court overturn a criminal verdict for improper burden shifting?
-the judge’s instruction shifted the burden of proof on an element of a crime charged to the defendant
-the judge’s instruction stated that an element needed to be proved to a level below a reasonable doubt
-the judge did not overrule an objection to a prosecutor’s argument that effectively accomplished one of the above
When should an appeals court overturn a sentence as cruel and unusual?
-it is grossly disproportionate to the seriousness of the offense
-it is a death penalty or mandatory lwop sentence against one who was a minor at the time of commission
-the crime punishes someone for having a status
-it was a death penalty for non-murder
-it was a death penalty for felony murder
-it was a mandatory death penalty
-it was a death penalty imposed without full information on the defendant
-it was a death penalty but the statutory guidance did not give enough guidance
-it was a death penalty imposed against one who is insane or retarded or cannot recall the crime
-the punishment amounted to torture
When should a motion to dismiss on double jeopardy grounds be granted?
- Prior criminal jury was empaneled and sworn OR the first witness was sworn
- The latter charge does not require proof of an additional element to that former charge
Crim pro hypo mentions multiple prosecutions of the same person think of…
motion to dismiss on double jeopardy grounds
When should a motion to suppress a statement as obtained in violation of the fifth amendment be granted?
FOUR WAYS
WAY ONE:
It was involuntary
WAY TWO:
1. Defendant was in custody or accused of a crime
2. Government agent questioning elicited the statement
2. Was not given a proper miranda prior to the questioning
WAY THREE:
1. Defendant was in custody or accused of a crime
2. Defendant unambiguously and specifically request a lawyer
3. Statement came after that request and without counsel present
4. Either 14 days hadn’t passed OR a fresh set of proper miranda warnings wasn’t given
WAY FOUR:
1. Defendant was in custody or accused of a crime
2. Defendant invokes his right to remain silent
3. Statement came after that
4. Police either didn’t give a new set of proper miranda warnings or did not “scrupulously honor” that invocation.
What does a proper miranda warning warn the defendant of?
- That he has the right to remain silent
- That anything he says can be used against him in court
- That he has the right to an attorney
- That if he cannot afford an attorney, one will be appointed for him if he so desired
When is a defendant in custody?
- They are not free to leave
- They were at the station house OR the same inherently coercive pressure as the station house was present
When should a judge grant a motion to suppress because the warrant was invalid?
-it wasn’t issued by a neutral and detached magistrate
-it was not based upon probable cause OR
-it didn’t particularly describe the place to be searched or the items to be seized
When are the warrant requirements
- neutral and detached magistrate
- Probable cause
- Particularity
Crim pro hypo mentions a warrant think of…
warrant requirements
When is an investigatory stop and frisk without a warrant permissible?
- Reasonable suspicion of criminal activity
- based upon articulable facts
- reasonable suspicion to believe detainee is armed and dangerous (this is only necessary for the frisk)
When is an automobile stop without a warrant permissible?
Non-roadblock: reasonable suspicion
Roadblock or checkpoints:
1. cars are being stopped based on a neutral articulable standard
2. closely related to a particular problem pertaining to automobiles and their mobility
When is an automobile search without a warrant permissible?
Probable cause to believe that it contains contraband or fruits, instrumentalities, or evidence of a crime.
When can government agents make a plain view search and seizure?
- legitimately on the premises
- in plain view
- probable cause to believe the items are evidence, fruits, instrumentalities, or contraband of a crime
When was there consent to a warrantless search?
- A person with apparent equal right to use or occupy the property
- Gave voluntary permission to enter those premises
- The government agent did not exceed the scope of that consent
When can a warrantless search be made pursuant to the hot pursuit doctrine?
- Hot pursuit
- Of a fleeing felon
When can a warrantless search pursuant to the exigent circumstances doctrine be made?
- reasonable belief that evidence is being destroyed
- officers did not create the exigency through an actual or threatened fourth amendment violation
When can a warrantless search pursuant to the evanescent evidence doctrine be made?
The evidence was likely to disappear before a warrant to be obtained
When can a warrantless search pursuant to the emergency aid doctrine be made?
- threat to health and safety
- if not acted upon immediately
When can a warrantless search pursuant to the contaminated food doctrine be made?
The entry was made to seize contaminated food
When can a warrantless search pursuant to the highly regulated industries doctrine be made?
- Place searched was a business
- In a highly regulated industry
When can a warrantless search pursuant to the inventory search doctrine be made?
- arrestee’s personal belongings were searched
- in order to inventory them
- before incarcerating the arrestee
When can a warrantless search pursuant to the airline passengers doctrine be made?
- airline passenger searched
- prior to boarding
When can a warrantless search pursuant to the public schools doctrine be made?
- public school official
- searching the person or property of a student
- moderate chance of finding evidence
- measures chosen reasonably related to the objectives of the search
- not excessively intrusive
When can a warrantless search pursuant to the parolee doctrine be made?
parolee agreed to such a search as a condition of their parole.
When can a warrantless search pursuant to the gov employees file cabinet and desk doctrine be made?
- search was of a gov employee’s desk or file cabinets
- reasonable in scope
- justified at its inception by a non-investigatory, work-related need OR reasonable suspicion of work-related misconduct
When can a warrantless search pursuant to the drug testing doctrine be made?
- drug test
- justified by special needs
What is the public safety miranda exception?
A miranda warning is not required where prompted by reasonable concern for public safety
What is the Miranda impeachment exception?
A statement obtained in violation of miranda can be used for impeachment purposes against a criminal defendant who chooses to take the stand
When should a motion to suppress evidence be denied under the sufficient attenuation doctrine?
Sufficient attenuation between illegality and the evidence considering:
1. temporal proximity
2. intervening circumstances
3. misconduct’s purpose and flagrancy
When should an appeals court overturn a conviction where the trial judge failed to exclude illegally obtained evidence when the judge should have?
When the government cannot show beyond a reasonable doubt that the error was harmless.
When should a habeas court overturn a conviction where the trial judge failed to exclude illegally obtained evidence when the judge should have?
The error had a substantial and injurious effect or influence.
Illegally obtained evidence think of…
-harmless error
-habeas corpus
When should a judge grant a motion to suppress an identification on sixth amendment grounds?
- the lineup or showing was post-charge
- defense counsel was not present
- defendant had not waived this right
When should a judge grant a motion to suppress an identification on due process grounds?
- unnecessarily suggestive
- substantial likelihood of misidentification
lineup or identification think of…
-motion to suppress on sixth amendment grounds
-motion to suppress on due process grounds
What are the elements of a contract?
- offer
- acceptance
- consideration
What are the elements of a quasi-contract?
- one confers a benefit on another
- without gratuitous consent
Contracts and sales hypo think of
-contract
-quasi-contract
-covenant of good faith and fair dealing
-promissory estoppel
-anticipatory repudiation
What are the elements of a firm offer counterargument to a lack of offer defense to contract formation?
- Merchant
- Offers to buy or sell the goods they deal in
- In signed writing
- The writing gives assurances that it will be held open for X time or just held open
- acceptance occurred before X or before three months if no time was stated
attempt to withdraw an offer think of…
firm offer rule
What is a merchant?
-regularly deals in certain goods
-by occupation holds himself out as having skills or knowledge peculiar to certain goods
What are the elements of promissory estoppel?
- Promise
- Promisor should reasonably expect to induce action or forbearance
- Such action or forbearance is in fact induced
When is a contract removed from the statute of frauds?
Way one:
1. Land contract
2. at least two of (i) payment in whole or in part, (ii) possession, (iii) valuable improvements
Way two:
1. Sale of goods contract
2. specially manufactured OR payment and acceptance
Way three:
Full performance by one party
Way four:
D falsely and intentionally told P that the contract was not within the statute of frauds
Way five:
D admits in pleadings or testimony that there was a contract
Statute of frauds think of…
Ways contract can potentially be removed from the statute of frauds.
Anticipatory repudiation lawsuit elements.
- at least some breach
- anticipatory repudiation
When does a breach NOT excuse performance?
- The contract was NOT for a sale of goods over $500
- The obligee received substantial benefit of the bargain despite the obligor’s defective performance
- The defective performance was not willful
Someone argues excuse by nonperformance think of…
Minor breach (aka substantial performance) rule
Someone tells another they’re not going to perform think of…
anticipatory repudiation
When is a condition of performance excused by failure to cooperate?
- the party having the duty of performance subject to the condition prevents that condition from occurring
- by way of wrongful action
someone argues they didn’t owe performance because a condition didn’t occur think of…
-failure to cooperate
-divisible contract
-waiver
-impossibility
-impracticability
-frustration
When is a condition of performance excused by unwillingness to perform?
Reasonable grounds to believe that
What is a divisible contract?
- performance of each party is divided into two or more parts
- number of parts due from each party is the same
- each performance is the quid pro quo of the other
- the contract is NOT expressly indivisible
Is consideration required for waiver of condition of performance?
No.
What must be proven to show there was a contract offer?
A reasonable expectation through:
1. a promise, undertaking, or commitment
2. certainty and definiteness in essential terms
3. communication of the above to the offeree
NOTE: a non-mirror-image acceptance is a counter-offer, except for sale of goods, then apply the battle of the forms
What does a lawyer need to show to show acceptance did not occur before offer revocation?
- Offer revocation through one of three things:
-Direct communication
-Publication through means comparable to how the offer was conveyed
-offeree (1) indirectly received (2) correct information (3) from a reliable source (4) of acts of the offeror that would indicate to a reasonable person that the offeror no longer wishes to make the offer - received by offeree, or published if by publication
- prior to acceptance’s effectiveness
Any contract think of…
-offer
-acceptance
-consideration
-divisibility
Offeror tried to pull out of offer think of…
test for whether revocation occurred before acceptance
What must a lawyer show to show that effective acceptance occurred?
IF the offer specified how acceptance needed to occur, then the lawyer must show acceptance according to those requirements
ELSE, the lawyer must show
1. the offeree knew of the offer
2. the offeree manifested assent to the terms of the offer
3. without attempting to change the terms of that offer (except for sale of goods, then apply the battle of the forms)
When is acceptance effective?
Did the offer say when? Then that’s the answer
If not,
Was it an auction contract? Then when the hammer fell
If not,
Was it an option contract? Then upon receipt
If not, then upon dispatch
What must a lawyer show to show adequate consideration existed?
- bargained-for exchange
- legal value
What are the elements of the mutual mistake affirmative defense?
- shared mistake
- about existing facts
- concerning a basic assumption upon which the contract was made
- material effect
- the party asserting the defense did not assume the risk
some sort of mistake think of…
-mutual mistake affirmative defense
-unilateral mistake affirmative defense
What are the elements of the unilateral mistake affirmative defense?
- mistake
- other party knew or had reason to know
- material effect
What are the elements of the misunderstanding affirmative defense?
- ambiguous contract language
- neither party was aware of the ambiguity OR both parties were aware of it but had opposite interpretations
vague contract terms think of…
misunderstanding affirmative defense
What are the elements of the fraud in the inducement affirmative defense?
- fraudulent misrepresentation
- justifiable reliance
- injured party rescinded
- before ever affirming
What are the elements of the fraud in the factum affirmative defense?
- tricked into giving assent
- under circumstances that prevented her from appreciating the significance of the action
What are the elements of the material misrepresentation affirmative defense?
- misrepresentation
- that would induce a reasonable person to agree OR that the misrepresenter knows for some special reason is likely to induce the particular person to agree
- justifiable reliance
contracts hypo and it appears someone took advantage of another think of…
-unilateral mistake
-fraud in the inducement
-fraud in the factum
-material misrepresentation
-infancy
-mental incapacity
-guardianship
-intoxication
-physical force duress
-improper threat duress
-undue influence
-unconscionability
When is a contract void as against public policy?
The consideration or subject matter is illegal
Contract seems shady think of…
void as against public policy affirmative defense
What are the elements of the infancy affirmative defense to breach of contract?
- minor at the time
- disaffirmed as a minor or within reasonable time of after reaching age of majority
- did not first affirm upon reaching age of majority
Contract with a minor think of…
infancy affirmative defense
What are the elements of the mental incapacity affirmative defense to breach of contract?
- mental capacity was so deficient as to be incapable of understanding the contract’s nature or significance
- legal representative disaffirmed OR he disaffirmed when lucid
- before legal representative affirmed OR he disaffirmed when lucid
contracts hypo crazy or retarded person think of…
mental incapacity affirmative defense
What are the elements of the guardianship affirmative defense to breach of contract?
- then under a guardianship
- the guardian did not assent to the contract
guardianship think of…
guardianship affirmative defense to breach of contract
What are the elements of the intoxication affirmative defense to breach of contract?
- was so intoxicated as to be incapable of understanding the contract’s nature or significance
- other party had reason to know of the intoxication
- he disaffirmed when he sobered up
- before he affirmed when he’d sobered up
Contracts hypo someone drunk or high think of…
intoxication affirmative defense
What are the elements of the physical duress affirmative defense to breach of contract?
- Physically forced to sign
- Against her will
Physical force against another contracts hypothink of…
physical duress affirmative defense
What are the elements of the improper threat duress affirmative defense to breach of contract?
- party’s assent induced by an improper threat
- by the other party
- leaving no reasonable alternative
- voided
- prior to affirmance
Contracts hypo threat or threatening behavior think of…
improper threat duress affirmative defense
What are the elements of the undue influence affirmative defense to breach of contract?
- undue susceptibility
- excessive pressure
What contracts are subject to the statute of frauds?
Marriage
Year (more than necessary to perform)
Land
Executor of estate contracting to pay the estate’s debts out of his own pockets
Goods more than $500
Surety
What must a lawyer show to show that the statute of frauds was complied with?
- produce a writing
- that reasonably identifies the contract’s subject matter
- indicates that a contract has been made between the parties
- states with reasonable certainty the essential terms of the unperformed promises
- signed by the party sought to be bound
marriage contract think of…
statute of frauds
Contract that will take a long time to perform think of…
statute of frauds
contract that has to do with an interest in land think of…
statute of frauds
contract involving an estate executor think of…
statute of frauds
contract involving the sale of goods think of…
-statute of frauds
-breach of warranty
-breach of implied warranty of merchantability
-breach of implied warranty of fitness for purpose
three-way contract think of…
statute of frauds
What are the elements of the unconscionability affirmative defense?
Contract terms so unfair as to shock the conscience
When should a judge grant an objection based upon the parol evidence rule?
- breach of contract action
- the contract was in writing
- the parties intended that contract to embody the final expression of that bargain
- other side has attempted to introduce written or oral statements made prior to that writing OR oral statements contemporaneous to that writing
- for the purpose of arguing the terms of the writing are different from what they say
What are the elements of the performance excused by non-occurrence of necessary condition affirmative defense?
- the contract made the defendant’s performance conditional upon something occurring
- that something didn’t occur
Contract where one side’s performance was not supposed to be immediate think of…
excuse by non-occurrence of necessary condition affirmative defense
What are the elements of the impossibility affirmative defense?
performance has become literally impossible
What are the elements of the impracticability affirmative defense?
- extreme or unreasonable difficulty or expense
- that difficulty or expense concerns a basic assumption upon which the contract was made
What are the elements of the frustration affirmative defense?
- supervening act
- reasonably did not foresee
- purpose destroyed
- both parties had realized that purpose at the time of the contract’s formation
contract performance is hard or expensive think of…
-impossibility
-impracticability
-frustration
What are the elements of the rescission affirmative defense to breach of contract?
Way One:
1. a new contract
2. between the same parties or their authorized agents
3. that is enforceable
4. to rescind the old contract
5. new contract in writing IF the old contract was subject to the statute of frauds
Way Two:
Breach of warranty of title
Way three:
anticipatory repudiation
one party tries to back out of a contract think of
rescission affirmative defense to breach of contract
What are the elements of breach of warranty of title?
- there was a warranty of title
- it was
Express warranty think of…
potential breach of warranty action
What are the elements of the breach of implied warranty of merchantibility?
- sale of goods
- by merchant who deals in those kinds of goods
- goods not merchantable
What makes goods merchantable
- pass without objection
- fair average quality
- fit for ordinary purposes
- within the variations permitted by the agreement, of even kind, quality, and quantity within each unit and among all units involved
- adequately contained, packaged, labeled
- conform to any promises or affirmations of fact made on the label
What are the elements of breach of implied warranty of fitness for purpose?
- sale of goods
- seller is a merchant of those goods
- seller knows or has reason to know of particular purpose
- seller knows or has reason to know of buyer’s reliance
- buyer in fact relies
- goods are not fit for that purpose
What are the elements of breach of express warranty?
- sale of goods
- affirmation of fact or promise about those goods (not mere puffery)
- part of the basis of the bargain
- came at a time such that buyer could have relied
- goods didn’t conform to that affirmation of fact or promise
Battle of the forms
non-mirror image acceptance is still acceptance
does the contract involve a non-merchant? the offer is the contract.
is the contract between two merchants dealing in the goods they’re merchants in? An additional term in the acceptance becomes part of the contract if:
- doesn’t materially alter
- offeror doesn’t object within a reasonable time
What is a fee simple absolute?
An estate of full ownership.
What does “from O to A” convey?
As much ownership to A as O has.
What does “from O to A and his heirs” convey?
As much ownership to A as O has.
What is a fee simple determinable?
An estate that automatically terminates on the happening of a stated event and then goes back to the grantor.
What does “from O to A as long as X,” or equivalent convey?
As much ownership to A as O has, until and unless X. And a possibility of reverter to O.
What is a fee simple subject to condition subsequent?
An estate that continues until the grantor exercises their right of termination.
What does “from O to A as long as X, in which case O or her heirs may enter and terminate the estate hereby conveyed” or equivalent convey?
As much ownership to A as O has, until and unless X. And a right of entry to O.
What is a fee simple subject to executory interest?
A fee simple determinable or a fee simple subject to condition subsequent, where the possibility of reverter or right of entry, respectively, goes to a third party.
What is an executory interest?
- A possibility of reverter or a right of entry not held by the original grantor
- that does not follow a life estate
What is a life estate?
An ownership interest for life.
What does “from O to A for life” convey?
As much ownership to A as O has. When A dies, that estate goes back to O.
What does “from O to A for life, then to B” convey?
As much ownership to A as O has. When A dies, that estate goes to B. B has a remainder.
What does “from O to A for the life of B” convey?
As much ownership to A as O has. When B dies, that estate goes back to O.
What does “from O to A for the life of B, then to C,” or equivalent, convey?
As much ownership to A as O has. When B dies, that estate goes to C. C has a vested remainder.
What is a vested remainder?
- A future interest
- that becomes a present interest upon the natural termination
- of a life estate
- and is created in the same instrument as the one that created the life estate
What does “from O to A for the life of B, then to C if X,” or equivalent, convey?
As much ownership to A as O has. When B dies, that estate goes to C if X or back to O if not X. C has a contingent remainder.
What is a contingent remainder?
- A future interest
- that becomes a present interest upon the natural termination
- of a life estate
- and upon the happening of another condition
- and is created in the same instrument as the one that created the life estate
What is joint tenancy?
- Co-ownership
- With a right of survivorship
What does ‘from O to A and B,’ or equivalent, “as joint tenants with right of survivorship” convey?
As much ownership to A and B, as joint tenants, as O has.
What is tenancy by the entirety?
Essentially joint tenancy but between spouses.
What does any conveyance to spouses, OTHER THAN, a joint tenancy conveyance, convey?
A tenancy by the entirety.
What is a tenancy in common?
- A concurrent estate
- with no right of survivorship
What is a tenancy at will?
- A lease
- terminable at the will of either the landlord or the tenant
What does a lease with a specific understanding between the parties that either party may terminate the lease at will create?
A tenancy at will.
What is an assignment?
A complete transfer of the entire remaining lease term.
What is a sublease?
A partial transfer of the entire remaining lease term.
What chattel property comes with real property when it is conveyed?
That which is affixed to the real property.
What creates an express affirmative easement?
- An owner explicitly grants another a
- right to enter upon the servient tenement
- and make affirmative use of it
What creates an express reserved affirmative easement?
- An owner explicitly grants another an estate
- But reserves for their self
- the right to enter upon the estate
- and make affirmative use of it
What creates an affirmative quasi-easement?
- An owner divides their estate
- and grants one part to another
- At the time of division
- A use exists on the servient part
- that is reasonably necessary for the enjoyment of the dominant part
- the parties intended the use to continue after the estate division
What is an affirmative easement?
- a right to enter upon the servient tenement
- and make affirmative use of it
How does the creation of a subdivision create an affirmative easement?
- lots are sold in a subdivision
- with reference to a recorded plat or map
- that also shows streets leading to the lots
What are easements created by the creation of a subdivision?
Streets that buyers of lots created by a subdivision have the right to use.
What is a profit a prendre?
a right to remove a valuable product of the soil.
What is an easement implied by profit a prendre?
A right to cross real property as is reasonable to exercise a profit a prendre.
What creates an easement implied by profit a prendre?
A profit a prendre’s creation.
What is an easement by necessity?
A right to cross another’s real property to access a public road or utility line.
What creates an easement by necessity?
- an owner of a tract of land
- sells a part of the tract
- and by this division
- deprives one lot of access to a public road or utility line
What creates an affirmative prescriptive easement?
- open and notorious
- adverse
- continuous and uninterrupted for the statutory period
How can a profit a prendre be created?
The same ways as affirmative easements, theoretically.
What are the elements of adverse possession?
- actual entry
- exclusive possession
- open and notorious
- adverse
- continuous for the statutory period
What is the doctrine of equitable conversion?
Once a real property estate sale contract is signed, equity immediately regards the buyer as the real property owner, and the seller has an interest in the proceeds of the sale, which is considered personal property.
What does the Dodd-Frank act prohibit?
-a mortgagee extending a loan without having determined the mortgagor’s ability to repay
-incomprehensible, unfair, deceptive, or abusive loan terms
-steering a mortgagor towards a loan not in their interest in order to increase the lender’s compensation.
What are the consumer’s rights during the foreclosure process?
-after a mortgagor has defaulted on a mortgage, the mortgagee must in good faith, consider a mortgagor’s request for a mortgage modification or other alternative to foreclosure
-the mortgagee cannot file an action to foreclose in court while such a request is pending, and if the request is made after teh action is filed, the mortgagee cannot proceed to foreclosure sale until the request is resolved.
What is the right to lateral support that a real property owner has?
- the right to have landed supported in its natural state
- by adjacent land
What is the right to subjacent support that a real property owner has?
The right to have the surface of the land kept intact even if one conveys the right to mineral extraction to another. (NOTE: of course, contracts can write over this common law presumption.)
How are water rights in watercourses and groundwaters determined?
The first person to take water from a source for beneficial use has the right to continue to use that quantity of water for that use.
How are water rights in surface waters determined?
Reasonable use.
What rights does a real property owner have in the airspace above their property?
Non-exclusive, but to be free from excessive noise and transit by aircraft.
What is a cooperative?
Title to the land and buildings is held by a corporation that leases the individual apartments to its shareholders.
What is a condominium complex?
A building or buildings where each owner owns the interior of their unit and an undivided interest in the exterior and common areas.
What is the rule against perpituities?
to be valid, an interest in property must vest or fail not later than 21 years after a life in being, connected with the vesting of an interest, at the time of the creation of the interest.
to what does the rule against perituities not apply?
-a charitable gift following a charitable gift
-reversionary interests
What is the rule against restraints on alienation?
Any restraint on alienation of a title interest in real property (as opposed to some non-title interest, such as a right to enter and extract minerals), is void.
What are the elements of an action for voluntary waste?
- Plaintiff is a landlord
- Defendant is a tenant
- the tenant negligently
- damages the property
NOTE: of course a contract can write over this.
What are the elements of an action for permissive waste?
- Plaintiff is a landlord
- Defendant is a tenant
- the tenant failed to make an ordinary repair
- necessary to keep the property in the same condition as at the commencement of the lease term
NOTE: of course a contract can write over this.
What are the elements of an action for ameliorative waste?
- Plaintiff is a landlord
- Defendant is a tenant
- the tenant made a substantial alteration
- to a structure leased from said landlord
NOTE: of course a contract can write over this.
What are the elements of the ameliorative waste common law affirmative defense?
- increases the value
- is performed by a long-term tenant
- reflects a change
What are the elements of a FHA discrimination claim?
- discrimination
- based on race, color, religion, national origin, sex, or disability
- in the sale or rental of a dwelling
What are the elements of a failure to permit reasonable modification FHA claim?
- landlord
- failed to permit a disabled tenant to make a modification to existing premises
- to accommodate their disability
- that modification was reasonable
What are the elements of a failure to accommodate FHA claim?
- landlord
- failed to make an accommodation
- in rules, policies, or services
- the accommodation was necessary to afford a disabled person an equal opportunity to use the building the landlord is a landlord of
- the accommodation was reasonable
What is an express negative easement or restrictive covenant?
- an explicitly granted right
- to enforce against another
- a prohibition on engaging in a certain activity with respect to their real property right
How can one create an express negative easement or restrictive covenant?
Way One:
1. A valid contract
2. Explicitly granting it
Way Two:
1. A valid land grant to another
2. explicitly reserving it for the grantor
What are the elements of easement extinguishment by estoppel
WAY ONE:
1. conduct or assertion by the easement owner
2. reasonable reliance
3. change of position
WAY TWO:
condemnation of the servient estate
WAY THREE:
destruction of the servient estate
What are the elements of easement extinguishment by prescription?
WAY ONE:
1. servient tenement’s owner interferes with the easement
2. open
3. notorious
4. continuous
5. non-permissible
6. for the statutory period
WAY TWO:
condemnation of the servient estate
WAY THREE:
destruction of the servient estate
What are the elements of easement by prescription?
- open and notorious
- adverse
- continuous and uninterrupted for the statutory period
What extinguishes an easement by necessity?
-The necessity ending.
-condemnation of the servient estate
-destruction of the servient estate
What is a license in real property?
- not a legal interest in land, merely a privilege
- personal to the licensee and therefore not alienable
- revokeable at any time by manifestation of the licensor’s intent
What can make a license in real property irrevokeable?
-licensee has invested substantial amounts of money or labor in reliance, this turns the license into an affirmative easement
-the license was coupled with an interest, in which case it cannot be revoked until the interest ends
What is a real covenant?
- a written promise
- to do or not do something on land
NOTE that you don’t need consideration
What is an equitable servitude?
- A non-title right in real property
- upon which a court will enforce and grant ONLY injunctive relief
- against non-bona fide purchaser successors
How is an equitable servitude created?
WAY ONE: the same way a real covenant is
WAY TWO:
1. a common scheme for the development of a residential subdivision
2. notice of the covenants
What is a party wall?
- A single wall that stands on and divides the property of two adjacent landowners
- that both landowners co-own
How is a party wall created?
-valid contract
-implication
-prescription
What is necessary for a party wall to run with the land?
the owners agree to be mutually responsible for maintaining it
What is a common driveway?
- A single driveway that stands on the property of two adjacent landowners
- that both landowners co-own
How is a common driveway created?
-valid contract
-implication
-prescription
What is necessary for a party wall to run with the land?
the owners agree to be mutually responsible for maintaining it
What are the requirements of validity for a state-enacted zoning ordinance?
- enacted to reasonably control the use of land
- for the protection of the health, safety, morals, and welfare of its citizens
What are the requirements of validity for a locally-enacted zoning ordinance?
- enacted pursuant to a state enabling act
- reasonably control the use of land
- for the protection of the health, safety, morals, and welfare of its citizens
What are the elements of a lack of notice defense to a prior grantee suing to quiet title?
WAY ONE:
1. the state in question has a notice statute
2. the prior grantee did not properly record
WAY TWO:
1. the state in question has a race-notice statute
2. the defendant properly recorded before the prior grantee properly recorded (if ever)
What do the magic words “without notice thereof” WITHOUT the magic words “first recorded” create, in a recording statute?
a notice statute
What do the magic words “without notice thereof” WITH the magic words “first recorded” create, in a recording statute?
a race-notice statute
How can a tenancy by the entirety be terminated?
WAY ONE: death of either spouse
WAY TWO: divorce
WAY THREE: mutual agreement
WAY FOUR: execution by a joint creditor of both spouses
When there are multiple secured interests in a real property, and one interest holder forces a foreclosure sale, what are the effects of the sale?
- the cost of the sale, attorneys’ fees, and court costs get paid out of the sale proceeds
- the principal and interest of the foreclosed loan gets paid off from the sale proceeds (if that doesn’t cover the outstanding debt, the foreclosing party can sue the borrower personally for the rest)
- junior vendor purchase money mortgages get paid off, to the extent possible, in their recording order, and then in their execution order, and then the borrower is personally liable on the rest
- junior third-party purchase money vendor mortgages get paid off, to the extent possible, in their recording order, and then in their execution order, and then the borrower is personally liable on the rest
- junior non-purchase money mortgages get paid off, to the extent possible, in their recording order, and in then in their execution order, and then the borrower is personally liable on the rest
- senior secured interests are not affected, the buyer at the foreclosure auction takes subject to them. She is not personally liable, but she can and may have to to prevent another foreclosure auction
What rules of evidence apply in federal court in a diversity case?
-for privileges, witness competency, and the effect of presumptions: STATE
-for all else: FEDERAL
When should a judge sustain an expression of sympathy objection?
FEDERAL: never
CALIFORNIA:
1. civil case
2. expression of sympathy
3. relating to the pain, suffering, or death of an acident victim
A lawyer tries to get into an expression of sympathy think of…
expression of sympathy objection
When should a judge sustain an evidence of immigration status objection?
FEDERAL: never
CALIFORNIA:
1. civil case
2. for personal injury or death
3. evidence is of a person’s immigration status
A lawyer tries to get into someone’s immigration status think of…
evidence of immigration status objection
When should a judge grant a records of morbidity or mortality study objection?
FEDERAL: never
CALIFORNIA:
1. civil case
2. hospital staff
3. records of a hospital morbidity or mortality study
A lawyer tries to get into a hospital’s having done a morbidity or mortality study think of…
records of morbidity or mortality study objection
When should a judge grant a proceedings and records of hospital quality and care committees objection?
FEDERAL: never
CALIFORNIA: in civil cases
When should a judge grant an act of prostitution objection?
FEDERAL: never
CALIFORNIA:
1. criminal prosecution objection
2. defendant was a victim of or witness to any serious felony, assault, domestic violence, extortion, human trafficking, sexual battery, or stalking
3. the prosecution attempts to introduce evidence that the defendant engaged in an act of prostitution at or around the same time
A lawyer tries to get into an act of prostitution in an evidence hypo think of…
act of prostitution objection
When are judicially noticed facts conclusive?
FEDERAL: civil cases
CALIFORNIA: all cases
When are trade inscriptions self-authenticating?
FEDERAL:
1. sign, tag, or label
2. purporting to have been affixed in the course of business
3. indicating ownership, control, or origin
CALIFORNIA: never
A lawyer tries to authenticate a trade inscription think of…
trade inscription self-authentication
When should a judge grant a hypnotized witness objection?
FEDERAL: no such thing
CALIFORNIA CIVIL: the witness couldn’t recall the thing prior to hypnosis
CALIFORNIA CRIMINAL:
-the witness couldn’t recall the thing prior to hypnosis,
-the substance of the pre-hypnotic memory was not preserved in writing prior to the hypnosis,
-the hypnosis wasn’t recorded on video, OR
-the hypnosis was done in the presence of law enforcement, prosecution, or defense.
When should a judge grant a motion to compel production of a witness’s unauthenticated, past writing, used to refresh recollection, to the other side?
FEDERAL: the witness refreshed recollection before trial
CALIFORNIA: always
refreshing recollection think of…
motion to compel production of that document
What are the remedies for failure to comply with a motion to compel production of a document used to refresh recollection?
FRE: judge’s discretion
Cal: testimony based thereon must be stricken
What is inadmissible or non-discoverable under attorney work-product doctrine?
- documents
- prepared by an attorney
- for his own use
- for prosecuting his client’s case
- not a case of necessity
a lawyer tries to get another lawyer’s work think of…
attorney work product objection
When should a judge grant a voter’s secret ballot privilege objection?
FEDERAL : never
CALIFORNIA: always
Lawyer tries to get into a voter’s ballot think of…
voter’s secret ballot objection
When should a judge grant a personal records of police officer or prison guard objection?
FEDERAL: never
CALIFORNIA: always
Lawyer tries to get into a police officer or prison guard’s records think of…
personal records of police officer or prison guard objection
Rule on excluding witnesses from the courtroom
upon request a judge must (may in CALIFORNIA) exclude witnesses except
-party
-presence is essential to a party’s presentation of a claim or defense
-statutorily authorized
What is necessary to establish the statement of kidnapped or murdered declarant hearsay exception?
- CALIFORNIA criminal case
- statement made by a kidnapped or murdered declarant
- now unavailable
- because of acts of the defendant
- for the purpose of preventing the defendant’s arrest or prosecution
lawyer tries to introduce a kidnapped or murdered declarant’s statement think of…
statement of kidnapped or murdered declarant hearsay exception.
What are the elements of the statement of past physical condition or state of mind hearsay exception requirement?
- California state court
- declarant is unavailable
- statement of past physical or mental condition, including intent
- that condition is an issue in the case
lawyer tries to introduce a statement of past physical condition or state of mind
past physical condition or state of mind hearsay exception
What are the elements of the statement describing infliction or threat of physical injury hearsay exception?
Cal only:
1. unavailability
2. statement describes, narrates, or explains the infliction or threat of physical injury on the declarant
3. was made at or near the time of the infliction of the treat or injury
4. was made under circumstances that indicate trustworthiness
5. is either in writing, recorded, or made to a law enforcement official or medical personnel.
lawyer tries to introduce a statement of past physical condition or state of mind think of…
statement describing infliction or threat of physical injury hearsay exception
What are the elements of the business records hearsay exception?
- writing or record
- made as a memorandum of any act, event, condition, opinion, or diagnosis
- made in the regular course of any business
- it was the regular course of that business to make such writings or records at the time of the act, event, condition, opinion, or diagnosis or within a reasonable time thereafter
What are the elements of the statement of child abuse victim hearsay exception?
- California criminal case
- declarant was 12 or under at the time of the statement
- declarant is still a minor at the time of trial
- statement described an act of child abuse or neglect
- sufficient indicia of reliability
- declarant testifies at trial OR declarant is unavailable and further corroboration evidence exists
What is necessary for an equitable servitude to run with the land?
- Intent (of the original parties)
- Notice (to subsequent owners)
- Touch and concern (almost always, just means affects the land, hard to find a way for this element to not be met.)
What is necessary for a real covenant to run with the land?
The equitable servitude elements +
4. horizontal privity (the original agreement was part of a grantor-grantee relationship)
5. Vertical privity (the successors in title interest must get the same amount of estate, not smaller)
What’s the difference between an equitable servitude and a real covenant?
You can only get an injunction to enforce an equitable servitude. But, you can get both an injunction and/or money damages for a real covenant. to get the injunction for the latter, you just have to seek to enforce it as an equitable servitude.
When should a federal judge grant a motion to transfer venue to another federal district?
- The action might have been brought in the other forum,
- (a) the transferring judge had venue but the alternative district would be more convenient, (b) the transferring judge doesn’t have venue, or (c) the parties had a valid forum selection clause to the receiving district and the public interest doesn’t dictate not transferring.
When should a judge grant a motion to dismiss or stay under forum non conveniens?
- The judge has venue
- The action might have been brought in another forum
- That forum is in another judicial system
- That forum is more convenient
When is an interlocutory appeal appropriate?
-An order on an injunction (NOT a TRO)
-An order on a receiver
-An order on property possession
-1292(b)
-collateral order doctrine
-writ of mandamus
-order on class cert + within 14 days of order + appellate court exercises discretion
When is the 1292(b) interlocutory appeal appropriate?
- trial judge certifies the interlocutory order contains a controlling question of law as to which there is substantial ground for difference of opinion, and immediate appeal may materially advance the ultimate termination of the litigation
- within ten days of the trial judge issuing that certificate, the party seeking the appeal takes that certificate and asks the court of appeals to hear the case wit
- the court of appeals agrees
When is a collateral order doctrine appeal appropriate?
- separable
- collateral
- too important
What is the initial question for a motion to amend a pleading?
Has trial started yet?
When should a motion to amend pleading be granted if made before trial has started?
-The party hasn’t yet amended that pleading before and 21 days have NOT passed since they served it
-The party hasn’t yet amended that pleading, a responsive pleading is required, and 21 days after the service of that response or a motion to dismiss or strike have not passed
-the opposing party gives written consent
-justice so requires
When should a motion to amend pleading be granted after trial has started?
-(1) allowing amendment would aid in presenting the merits (2) the non-amending party would not be prejudiced in their action or defense on the merits
-an issue not raised by the pleadings was tried by express or implied consent of the parties
What is the general rule about disclosures for real property?
Caveat Emptor
What is the exception to caveat emptor?
Latent defects
What is a latent defect?
A dangerous condition that could not be discovered upon reasonable inspection
Past recollection recorded hearsay exception elements
(i) the witness at one time had personal knowledge of the facts stated in the writing;
(ii) the writing was made or adopted by the witness;
(iii) the writing was made while the matter was fresh in the witness’s mind;
(iv) the writing is accurate;
(v) the witness has insufficient recollection to testify fully and accurately; and
(vi) offered by a party NOT during their case in chief (for the writing to be admitted as an exhibit, if you just want the notes read into evidence, this element’s unnecessary.)
Unintuitive FRE nonhearsay
Statement of a party opponent
What is a motion to dismiss for insufficient process?
A motion to dismiss because of defects in the documents and their content.
General v. Specific intent crimes
All crimes are general intent except:
-inchoate crimes (including assault)
-theft crimes
-premeditated murder
What are the insanity tests?
-M’Naghten
-Irresistible Impulse
-Durham
-MPC
M’Naghten test elements.
- mind disease
- caused a reasoning defect
- lacked the ability at the time to (a) know the action’s wrongfulness or (b) understand his actions’ nature and quality
Irresistible Impulse test elements
-Unable to control his actions
-Unable to conform his conduct to the law
Durham test elements
product of mental disease or defect
MPC insanity test elements
- mental disease or defect
- cause a lack of substantial capacity to
- (a) appreciate the criminality or (b) conform his conduct to the law’s requirements
When can claims be aggregated to meet diversity jurisdiction’s amount in controversy requirement?
-single plaintiff may aggregate all their own claims
-multiple plaintiffs may aggregate their claims only where they seek to enforce a common or undivided interest
